Kerry A Griffin

Preliminary Matters

Service

1. The Registrant was not in attendance and accordingly the Panel had to be satisfied that service of the Notice of Hearing had been sent in accordance with the Rules, before moving on to consider whether it would be appropriate to proceed in her absence. 

2. The Panel heard and accepted the advice of the Legal Assessor. The Panel had sight of an email dated 12 December 2024, sent to the Registrant at her registered email address, giving the requisite notice of today’s hearing. There was notification that the email had been delivered. The email notified the Registrant of the hearing time, the date and that it would be conducted remotely by video conference. Information was included about how the Registrant could apply for a postponement, should she have wished to do so, and the Panel’s power to proceed in her absence, in the event that she did not attend. 

3. The Panel was thus satisfied that service had been complied with in accordance with the Health and Care Professions Council (Conduct and Competence Panel) (Procedure) Rules 2003 (as amended). 

Proceeding in absence 

4. With the Registrant not present, Mr Barnfield made an application to proceed in her absence. 

5. The Panel heard and accepted the legal advice from the Legal Assessor, who referred it to the case of the GMC v Adeogba [2016] EWCA Civ 162, and the principles to be considered when deciding whether or not to proceed in the absence of a Registrant. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution, particularly because the Registrant was not represented. The Panel also had regard to the Health Care Professions Tribunal Service (“HCPTS”) Practice Note entitled ‘Proceeding in the Absence of the Registrant’. 

6. The Panel noted that the Registrant was aware that proceedings were being taken against her by the HCPC because, on 25 January 2025, she responded to the Notice of Hearing, saying, “I’ve already stated I won’t be attending.” 

7. This was a reference to an email sent by the Registrant to the HCPC on 26 December 2024, in which she said she would not be attending the hearing because she would be at work. She provided a number of documents that she asked to be referred to by the Panel when considering her case. Those documents were before the Panel. 

8. The Panel was of the view that the Registrant faced serious allegations and that there was a clear public interest in the matter being dealt with expeditiously. The Panel noted that there were a number of witnesses in attendance and expecting to give evidence. The Panel considered an adjournment would serve no useful purpose, because it seemed most unlikely that the Registrant would attend on another occasion and, notably, she had not requested a postponement or an adjournment. The Notice of Hearing does refer to the possibility of postponements and the action a registrant should take if they wished to apply for one. In light of the Registrant’s clear indication that she would not be attending and the fact that she had not sought a postponement of the hearing, the Panel decided that she had voluntarily waived her right to be present and her right to be represented at this hearing. 

9. The Panel concluded that it was in the interests of justice that the matter should proceed, notwithstanding the absence of the Registrant. The Panel would draw no adverse inference from the Registrant’s non-attendance and would take into account the contents of the two bundles she had submitted for the hearing. 

Hearing to be partly in private 

10. Mr Barnfield made an application in respect of the Registrant’s private life for the Panel to consider hearing this case partly in private in light of the references within the Registrant’s material to her health and family matters. 

11. The Panel considered the application with care and accepted the advice of the Legal Assessor. The Panel also considered and applied the guidance set out in the HCPTS Practice Note on Conducting Hearings in Private. In accordance with that guidance, the Panel decided to go into private session as and when any reference were made to the Registrant’s health and/or personal family matters. This was deemed necessary in order to protect the Registrant’s right to a private life. The rest of the hearing would be conducted in public in the usual way. 

Background 

12. The Registrant is a Biomedical Scientist (“BMS”), who was first registered with the HCPC on 27 January 2015. 

13. The Registrant commenced employment at the Hull and East Yorkshire NHS Trust (“the Trust”) as a Band 5 BMS in the Cellular Pathology Department on 4 April 2016. She was responsible for performing a range of scientific procedures on biological samples. These procedures contributed to the diagnosis, treatment and monitoring of disease investigation. The Registrant was responsible for dealing with patient histology samples, not patients. 

14. On joining the Cellular Pathology team in April 2016 the Registrant was provided with a training manual and a lot of in depth training and support in the department as she had very little knowledge of Cellular Pathology due to her previous training taking place within Microbiology, a very different discipline. 

15. The Registrant underwent training in the various techniques required in Cellular Pathology. The training she received, said Ms NB, Advanced Practitioner in Immunocytochemistry at the Trust, was the same training as provided to all new members of BMS staff in the department. It consisted of ‘new-starter’ training in Embedding, Sectioning, Stain and Send Out, BMS Cut up and Frozens. 

16. Initially the Registrant is said to have made the same mistakes common to new starters, but subsequently she is alleged to have made serious errors that could have impacted upon patients. Action was taken by the Trust to retrain and help to support the Registrant, although it was said that she was not particularly receptive to this, and it was felt necessary to adopt a more formal capability process. 

17. At a meeting on 29 August 2019 the Registrant attended a meeting with Mrs M and her competency was discussed. An improvement Plan was created and agreed, to help her improve. The outcome of the meeting was that the Registrant was placed onto Stage 1 of the Trust Managing Capability Policy and a review date was set in eight weeks’ time. 

18. Stage 1 Reviews took place on 23 October 2019, 18 December 2019 and 12 February 2020. On each occasion Stage 1 of the Trust Managing Capability Policy was maintained as some errors continued to be made. The Registrant failed to attend her Stage 1 Review meeting on 15 April 2020, with the Registrant saying she had the wrong date in her head. The meeting was re-scheduled for 10 June 2020, the delay being caused by the Covid-19 pandemic and based on HR advice. 

19. On 5 June 2020, Mrs JM received a progress report on the Registrant. A number of issues were highlighted, including: 

• failure to notice a mucosal biopsy slipping over into the incorrect orientation while freezing;
• failure to cover a slide with enough antibody;
• failure to notice that the cryostat was far too cold;
• poor quality frozen sections produced;
• failure to use any supporting medium to freeze a sample down;
• failure to trouble shoot;
• failure to prepare a work area to receive a renal biopsy. 

20. On 10 June 2020, Mrs JM had the delayed Stage 1 Review meeting with the Registrant. Mrs JM said that the Registrant had failed to meet two out of three of her targets. She had failed to orientate a biopsy correctly and she had not completed her training manual. Mrs JM said that while there was no set time within which a training manual should be completed, it was unreasonable not to have done so within 17 months and to have not made progress with it. The Registrant had been instructed to complete her training manual to help her increase her theoretical knowledge in 2019 but, it was alleged, she did not complete the reading. 

21. It was therefore decided that the Registrant should be escalated to Stage 2 of the Trust Managing Capability Policy and a new improvement plan (the fourth) was put in place to help the Registrant to meet her objectives. There were six objectives for the Registrant to complete by 27 July 2020. Mrs JM said that when she met with the Registrant on 6 August 2020 for a Stage 2 Review meeting, the Registrant produced no evidence to show any progress had been made with her improvement plan. 

22. Mrs JM recorded that:
“Ms Griffin had been accommodated on the rota in Frozens as much as possible in the 8 week time frame to enable her to meet her objectives. She was in the Frozens area for 52% of the time that she was at work during these 8 weeks. This is unusual as all the Band 5 and 6 staff work in this area and in an 8 week period may only be in Frozens on 2 or 3 days. She had not engaged with the senior BMS in the Frozens area to produce evidence of any improvements. She failed to produce any evidence of progress she had made with her training manual. Ms Griffin also failed the BMS cut-up competency assessment.” 

23. The outcome of the Review meeting was the escalation of the Registrant’s capability to be considered by a panel. 

24. Between July and August 2020, it was alleged that the Registrant continued to make errors, as reflected in the Particulars above.

25. The Registrant was advised by letter, on 14 August 2019, to stop embedding all skin specimens, including those over 2cm. This represented a restriction on her practice. 

26. Standard 4 of the HCPC Standards of Conduct Performance and Ethics in force at the time, states: You must provide (to us and any other relevant regulators) any important information about your conduct and competence. In particular, you must let us know straight away if you are: placed under a practice restriction by an employer or similar organisation because of concerns about your conduct or competence. Ms LE, a Registration Manager at the HCPC, confirmed that the restrictions placed on the Registrant’s practice were of a kind that required her to notify the HCPC in accordance with Standard 4. However, at no time did she do so. The HCPC was first notified of these restrictions on the Registrant’s practice when she was referred to the HCPC by her employer on 17 September 2020. 

27. Mrs JM observed that the Registrant “required a lot more supervision that the other BMS staff. The Team had to check if what she was doing was right or correct. Kerry Griffin often missed things and did not do the things she was supposed to do despite knowing what to do.” 

28. Mrs JM went on to comment on the impact on the Service as follows: 
“All of these issues put pressure on other staff as they have to cover these jobs more often. In a very busy, highly technical area like Cellular Pathology it is essential to have competent staff to enable patients to receive an accurate diagnosis in a timely manner.
Ms Griffin has been employed within the department for over 4 years. During this period of time it is expected that staff have the skills and knowledge to complete all competencies, enabling progression to the more complex areas of the laboratory.
Ms Griffin has been provided with more additional training and extra support than any other member of staff in the department yet she continues to make a lot of errors. As a result of this restrictions to her practice are in place meaning she is unable to perform the full duties of her job description, impacting on service provision.
A number of supportive measures have been implemented for Ms Griffin in the form of additional training, extra supervision, assessments and informal and formal improvement plans. Ms Griffin’s lack of capability causes great concern to the department as the impact of her errors have previously had the potential to be catastrophic. This has resulted in a significant lack of management confidence that Ms Griffin has the ability to perform safely as a Biomedical Scientist.” 

29. On 20 August 2020, the Registrant resigned from the Trust. 

30. On 17 September 2020, the Trust referred the Registrant to the HCPC. Mrs JM said the reason for this was that the Trust had convened a Capability Panel and the Registrant would have been dismissed, had she not resigned. The concern, therefore, was that there would have been no record that she had been through this Capability process and she would have been able to apply for another role without any of the Capability process being known. 

31. As part of its investigation into these alleged concerns, the HCPC instructed an expert witness, Dr RW, a Clinical Biochemist with 22 years’ experience working in Pathology, to comment on the matters alleged. She provided a Report dated 8 December 2022. 

32. Dr RW gave her professional, expert opinion on some of the matters alleged, as detailed below in the Panel’s decisions on the facts. 

33. In summary Dr RW said:
“The laboratory has provided evidence to demonstrate adequate training and extensive continued support was delivered and appropriate assessment of competency was performed and still the registrant made errors (some duplicated) over a long time period. The registrant initially achieved the required standards set out by the laboratory, but then either lost the ability to retain those standards or lacked the care and attention required to uphold them. In my opinion they did fall below the standards required of a Biomedical Scientist.” 

The Registrant’s case 

34. The Registrant did not attend the hearing. She did, however, provide some written representations. In the first of these, a letter dated 9 February 2021, the Registrant said that she decided to hand in her notice at the Trust. 

35. The Registrant referred [REDACTED] something she had been doing for two years, and added, “I was concerned that I was making mistakes. As a registered Biomedical Scientist, I should not have been making them" 

36. The Registrant concluded by saying, “I would very much like to stay registered, and would be willing to retrain, go back to university, start on a lower band/trainee role.” 

37. Attached to the letter was a document detailing some responses to the Allegations as formulated initially. Some of those had not been proceeded with, but as far as it is possible to discern, with respect to the current Allegations, the responses are detailed below in the Panel’s decision on the facts. 

38. The Registrant also provided three references, one dated 29 January 2021, the other two undated, that related to the Registrant applying to be a member of the Covid-19 vaccination team in 2021 (a role she secured). The Registrant was described as personable and kind, willing to learn new skills, outgoing with a friendly personality, a true professional and supportive team member with a passion for healthcare science, an asset to the NHS. 

39. In correspondence to the HCPC, dated 7 March 2024, the Registrant said she wanted to inform the Panel of some “possible mitigating circumstances” at the time of her working at the Trust. She added that “By no means does it excuse the mistakes I was making, as I should not have been making mistakes, and I should have asked for help sooner.” 

40. [REDACTED]. All this meant that it was a particularly challenging time, filled with worry. She said she was as a result tired and allowed herself to become distracted at work. She said she was aware “this should not have happened.”  

41. The Registrant said that she had not practised in any pathology department since leaving the Trust in September 2020 and that she currently works as a Laboratory Analyst/Chemist. She said that she would like the opportunity to “clear my name with the HCPC.” She added:
“Whether I could do this by retraining, working under supervision whilst performing some BMS tasks. Whilst I do not intend to apply for any pathology roles in the immediate future, I would like to have the option eventually, if there’s anything I can do to rectify my mistakes.” 

42. The Registrant concluded by saying, “I am unable to attend the hearing, due to being at work. I would like this letter to be considered.”

Application to withdraw Allegations 5, 6 and 7 

43. At the conclusion of the HCPC’s case, Mr Barnfield made an application to withdraw Allegations 5, 6 and 7. He submitted that given the evidence of Mrs JM that the Registrant had never been assessed as competent in Frozens and the evidence of Dr RW that this could never, therefore, amount to a lack of competence, the HCPC took the view that Allegations 5, 6 and 7 were no longer supported by the evidence. 

44. The Panel considered the application with care and accepted the advice of the Legal Assessor. 

45. The Panel noted that these Allegations relied on the hearsay evidence of Ms VH, together with the evidence of Mrs JM and the expert Dr RW. The Panel did consider whether it might be appropriate to request a statement from Ms VH, but was satisfied that this would not in fact make any difference and furthermore would unduly delay proceedings. Had she attended, Ms VH may well have been able to provide more evidence about the process the Registrant was going through at the time, but the key factors (as detailed below) would not be altered. 

46. Mrs JM, in her evidence, said that the Registrant was never signed off as competent in Frozens. 

47. The Panel noted that at the time of completing her report, Dr RW said of these allegations: 
“From the information provided, it is unclear whether the above were being observed for ongoing competency assessment due to concerns or as part of the registrants training in the area of the laboratory. This allegation could suggest a lack of competency to follow the SOP however I cannot say whether the registrant fall below the standards expected of a registered Biomedical Scientist without knowledge of their competency status.” 

48. It was only after the oral evidence of Mrs JM, that the Registrant’s competency status was established, namely she had not been assessed as competent in Frozens. Once that was established, Dr RW gave her clear evidence that as the Registrant had not been signed of as competent in Frozens, then any errors she made whilst working in Frozens, could not be categorised as amounting to a lack of competence as “she should never have been allowed to do those tasks.” Dr RW questioned why the Registrant had been allowed to do such tasks and said it was “not fair on anybody.” 

49. In light of the clear evidence from Mrs JM that the Registrant had never been signed off as competent in Frozens and the clear evidence of the HCPC’s expert Dr RW, that if the Registrant were not signed off as competent any error whilst working in Frozens could not amount to a lack of competency, the Panel decided that, even if the Registrant had not done the things that it was alleged she had not done in Allegations 5, 6 and 7, she could not be held to be culpable in any way and this could not amount to a lack of competence. 

50. The Panel was satisfied that allowing this application to withdraw Allegations 5, 6 and 7 in their totality would not amount to under prosecution or be contrary to the public interest. It is not in the public interest to pursue an allegation which has no prospect of success, as was now the case here. 

51. Accordingly, the Panel accepted the application to withdraw Allegations 5(a), 5(b), 6(a), 6(b), 7(a) and 7(b). 

Decision on Facts 

52. In reaching its decisions on the facts, the Panel took into account the evidence provided by the witnesses called by the HCPC and all the documentary evidence provided by both parties. The Panel also took into account the submissions made by Mr Barnfield on behalf of the HCPC. The Registrant was not present but had provided some written representations for the Panel to consider and the Panel took these into account. The Panel accepted the advice of the Legal Assessor and bore in mind that it was for the HCPC to prove its case on the balance of probabilities: it was not for the Registrant to disprove the allegations. 

53. The Panel noted that in her correspondence, the Registrant made general comments about having made mistakes and that she should have asked for help sooner. The Panel acknowledged this demonstration of candour, however, as the Registrant had not unequivocally admitted any specific allegation, the Panel approached them all on the basis that it was for the HCPC to prove them. 

54. The Panel heard oral evidence from the following witnesses:
• Mrs JM - Chief BMS at the Trust
• Miss NB - Advanced Practitioner in Immunocytochemistry at the Trust
• Dr RW - Clinical Biochemist and expert witness
• Miss LE - Registration Manager at the HCPC

Particular 1 - found proved
1. On or around 20 September 2017 you over trimmed a case when it was not appropriate to do so.

55. The HCPC relied on the evidence of Mrs JM. It was alleged that on or around 20 September 2017, the Registrant over trimmed a case. A case is what a set of patient slides is called. It was alleged that the Registrant cut too far and a lot of tissue was lost. Mrs JM said that on this occasion the consultant who looked at the case was still able to make a diagnosis, but the incident had to be resolved by a Senior BMS to ensure that a root cause analysis was carried out to prevent the error from recurring. 

56. The Incident Reflective Practice Sheet recorded, “Block was turned + trimmed, then a full face done. The block was over trimmed.” In answer to the question, “Why did this happen?” the answer given was, “was trying to get all the tissue onto the slide.” 

57. Mrs JM was taken to the documentation for this incident, which showed that the Registrant had done two full-face cuts, rather than the turn and re-cut that was indicated. Mrs JM said although in this case there was not in fact an impact, the potential consequence of carrying out the two full-face cuts was that there may not have been enough tissue left to carry out a test and that tissue may have been cancerous. Furthermore, it may not have been possible to obtain further tissue and that would have meant the patient might never get their diagnosis. 

58. When asked why she thought this error had occurred, Mrs JM said, “Having watched her, Kerry did a lot of training and being assessed as competent and then ignoring what she had been told: that was a repeated pattern, possibly a lack of concentration, I don’t know why she did that.” 

59. The HCPC also relied on the expert evidence of Dr RW. In relation to this allegation, she said:
“They requested the block was turned over which and this request was completed, however the registrant also carried out a Full and Full2 procedure which wasn’t requested. This resulted in there being insufficient sample for re-trimming. (sic)
I cannot state why the case was over trimmed but a whole transverse section is required to allow the consultant to assess all the structures of the organ being investigated. If a case is over trimmed, this means a vital aspect of the organ is not visible on the slide for the consultant to view and therefore a full assessment of the case cannot be made which can lead to a missed diagnosis, however the incident form (PATH-1303-17 pg197 expert bundle) did state that on this the patient’s diagnosis was unaffected so classed as minor on this occasion.
From the information provided (Routine sectioning assessment/competency document signed 13/09/2016 pg 193 expert bundle), the registrant had been assessed as competent to carry out this task and therefore the evidence demonstrates a lack of competency which could have affected patient care had it not been identified and therefore falls below the standards expected from a registered Biomedical Scientist. It is difficult to state to what level without reviewing the blocks and slides produced.” 

60. As far as the Panel could ascertain, the Registrant’s response to this allegation on page 6 of her bundle was as follows:
“There was a request for a piece of tissue to be melted down, and turned over, then re-sectioned. I believe I took it to full-face, which may have been too much.” 

61. The Panel noted that the Registrant did not appear to dispute this allegation. The evidence from Mrs JM and the contemporaneous documents was compelling and Mrs JM confirmed that this was an area where the Registrant had been trained and assessed as competent. Dr RW’s evidence also supported the HCPC’s case. 

62. Accordingly, the Panel found this Particular proved, but noted that it was early on in the Registrant’s practice in Cellular Pathology and was followed by almost two years without any issues resulting in referral to the HCPC.

Particular 2 - found proved
2. Between 24 July 2019 and 29 August 2019, you incorrectly orientated 3 pieces of skin whilst embedding.

63. The HCPC relied on the evidence of Mrs JM. Between 24 July 2019 and 29 August 2019, it was alleged that the Registrant made three potentially serious errors whilst ‘embedding’, which is the term given to the process of placing tissue samples into molten wax. The wax is then slowly set to allow the tissue to be orientated in a particular way. The result is a piece of tissue embedded in wax in a plastic cassette known as a block. It was alleged that the Registrant orientated three pieces of skin incorrectly, which could have led to three patients being unable to receive a diagnosis from their specimens. Mrs JM was concerned that the Registrant had been trained and assessed as competent and she could not understand how the Registrant “suddenly did not know what she was doing.” 

64. There were two Incident Reflective Practice Sheets covering these errors. The first recorded, “Skin sample was incorrectly orientated at embedding. This was then sectioned, stained and sent to consultant. Not all skin layers were present, so had to re-embed. Some layers were lost due to trimming.” In answer to the question, “Why did this happen?” the answer given was, “Possibly too long spent embedding, causing lack of concentration.” 

65. The second Incident Reflective Practice Sheet recorded, “2 skin samples were incorrectly orientated at embedding. These were then sectioned and stained. Skin layers were lost when trimming. Samples had to be re-embedded.” In answer to the question, “Why did this happen?” the answer given was, “lack of concentration at embedding. Maybe too long spent on embedding. Take more breaks and ask for second opinion if unsure.” 

66. In her oral evidence Mrs JM said the skin was either correctly orientated or it was not. Mrs JM said that if these errors had not been picked up, the consultant would have sent them back to have the issues rectified, incurring additional time and cost and a potential delay in diagnosis and thus treatment. 

67. The HCPC also relied on the expert evidence of Dr RW. In relation to this allegation, she said:
“Correct orientation of tissue prior to embedding is required to ensure that all required aspects of the skin biopsy can be viewed once the block is trimmed to allow the Consultant to fully observe and assess the case and reduce the risk of misdiagnosis due to missing areas of the biopsy. Incident form Path-821-19 pg60 expert bundle stated that the surface epithelium was lost resulting in less tissue for the reporting Consultant Pathologist to screen and a referral back to the clinician as additional treatment may be needed. This is why patient care may have been affected.
It is my understanding that this is a technical task, requiring specific training and manual dexterity, however once competent this is a routine role for a qualified Biomedical Scientist.” 

68. Dr RW added:
“From the information provided, the registrant had passed a further routine competency assessment as well as a complex competency assessment, before this allegation occurred, signing the registrant off as competent to carry out these tasks, therefore the evidence demonstrates a lack of competency. This could have affected patient care had it not been identified.” 

69. As far as the Panel could ascertain, the Registrant’s response to this allegation on page 6 of her bundle was as follows:
“I went to a lunchtime seminar, given by lead Advanced Practitioner, on Skin. I also observed the advanced practitioners direct skin specimens. I was put onto Trust Policy because of incorrectly orientating the 3 pieces of skin. The embedding issue was rectified.” 

70. The Panel noted that the Registrant did not appear to dispute this allegation. The evidence from Mrs JM and the contemporaneous documents was undisputed and compelling. In addition, Mrs JM confirmed that this was an area where the Registrant had been assessed as competent and Dr RW’s evidence also supported the HCPC’s case. Accordingly, the Panel found this Particular proved.

Particular 3 - found proved
3. On or around 22 May 2020 you did not act appropriately after only finding one breast biopsy.

71. The HCPC relied on the evidence of Mrs JM, who said that on 22 May 2020, she had a discussion with the Registrant about a cut-up for a breast cancer biopsy she had dealt with. A concern had been raised that the card with the pot for the BMS cut-up stated there were two cores from a breast cancer biopsy, but the Registrant only found one and, it was alleged, failed to look for the other. 

72. Mrs JM said that the Registrant had been expected to read every card and look in every pot. If the card said two cores she would be expected to look for two cores. Mrs JM said that it was not unusual for cores to wrap around each other, but if a BMS can only find one core when the card states two, they are expected to seek advice from a senior member of staff, so that a thorough search could be done for the second core. It was alleged that the Registrant, however, took no such action and, on finding only one core, did nothing more. 

73. Mrs JM said that this was an issue because if you are taking two cores from a potential breast tumour, one core may be cancerous and the other may not be. In such a situation a cancer diagnosis can be missed. In this particular case, the second core was indeed wrapped around the first core. Mrs JM said that if the Registrant had checked more carefully she would have seen that. Mrs JM added that the Registrant would have known from the Standard Operating Procedure (“SOP”) that she should have stopped and asked for help, but she did not do so. 

74. The Incident Reflective Practice Sheet recorded, “Breast sample stated 2 cores on lab IA card but only one core found + processed. The thin 2nd core was found wrapped around the main one at embedding.” In answer to the question, “Why did this happen?” the answer given was, “The pot was checked for 2 cores, only one was found. What I thought was one core, wasn’t teased apart. I didn’t want to break what I thought was one core.” 

75. Mrs JM said the Registrant’s training covered this kind of work. She said the card clearly stated two pieces of skin were to be embedded and “she ignored that and still did not see the importance of looking for the other breast core.” Mrs JM went on to say,”It seemed to be just the way she works and she did not grasp the importance of following the SOP.” 

76. Mrs JM sent an email to the Registrant highlighting the SOP which stated: “If any anomalies are identified or you are unaware of how to dissect a particular specimen inform a senior BMS, Advanced Practitioner. Do not dissect any specimen that appears different to how they are described in this protocol.” 

77. The HCPC also relied on the expert evidence of Dr RW. In relation to this allegation, she said:
“From the information provided, the laboratory has a clear procedure for reviewing every request card and what to do should the number of biopsies received be different to the number stated on the card. Despite it being highlighted to the registrant by a colleague that there was a discrepancy, the registrant took no further action. This allegation suggests either a lack of competency to follow the SOP or a conduct issue.” 

78. As far as the Panel could ascertain, the Registrant’s response on page 6 of her bundle did not refer to this allegation. 

79. The Panel was satisfied on the unchallenged evidence of Mrs JM, as supported by the contemporaneous documentary evidence, that the Registrant had not acted appropriately after only finding one breast biopsy. The card clearly stated there were two cores and if the Registrant had been unable to find the second one she should have sought assistance. This she failed to do. The evidence demonstrated that this was an area where the Registrant had been trained and assessed as competent at the time, albeit she was subsequently assessed as not competent. Dr RW’s evidence also supported this Allegation. 

80. In all the circumstances the Panel found Particular 3 proved.

Particular 4 - found proved
4. On or around 26 May 2020 you did not provide a correct description of a specimen compared to the clinical information on the card.

81. The HCPC relied on the evidence of Mrs JM, who referred to a further incident relating to a BMS cut-up by the Registrant. A concern was raised that a slide and a card on the case did not seem to match. When the consultant looked at the slide the tissue on it matched the clinical information, but not the description the Registrant had written. Mrs JM said that the Registrant had described the specimen incorrectly and they had to “pull all the specimens and review them.” Mrs JM said that the Registrant had described the specimen as several cores but it was in fact a polyp. 

82. Mrs JM said that several cores of tissue are very different from a polyp. Cores of tissue are biopsied from an area inside a patient, whereas a polyp is something that grows on the surface and can be a precursor to cancer. Mrs JM said that they are “obviously very different” and the concern was that somehow two specimens had been “crossed over.” A polyp specimen was sent to the laboratory, but the Registrant described it as several cores of tissue. This gave rise to a concern that there had been a cross-over with another specimen, this could mean two patients could get the wrong diagnosis. 

83. The Incident Reflective Practice Sheet recorded, “Dr Sekhri made us aware of a slide that did not match the lab IA description. We had to check the basket of cassettes from that day to confirm there was no crossover of cases. It was decided the description on the lab IA was not accurate.” In answer to the question, “Why did this happen?” the answer given was, “The stamp was not correctly annotated to reflect the sample.” 

84. Mrs JM confirmed that the Registrant had received full training and passed a competency assessment in this task prior to 26 May 2020. 

85. The HCPC also relied on the expert evidence of Dr RW. In answer to specific questions, she said:
“In light of the evidence, was the registrant’s description of the specimen incorrect, as compared with clinical information on the card?
Based on the information provided (Unlabelled evidence in the expert bundle showing a photo of the lab 1A card, Incident form Path-556-20 of the expert bundle and also the reflective practice sheet), the registrants description was incorrect. This was admitted in the reflective practice sheet where the registrant admitted to not having set the stamp to the correct details before use.
This could have led to an incorrect diagnosis for the patient had it not have been noted by the consultant histopathologist.
If so, did the registrant fall below the standards expected of a registered Biomedical Scientist? If so, how far below those standards?
From the information provided, the registrant failed to describe the section appropriately. I do not believe I have been provided with evidence to suggest that this task had been competency assessed and passed by the registrant and therefore cannot say whether the registrant fall below the standards expected of a registered Biomedical Scientist.” 

86. Dr RW was informed by the Chair that the Registrant had been assessed as competent in BMS Cut Off (as shown on page 357 of the bundle and confirmed by Mrs JM) and asked whether that changed her view. Dr RW said, “In that case, that would demonstrate a lack of competence.” 

87. As far as the Panel could ascertain, the Registrant’s response on page 6 of her bundle did not refer to this allegation. 

88. The Panel accepted the unchallenged evidence that the Registrant had not provided a correct description of a specimen compared to the card and that, as she had been signed off as competent in BMS Cut-Off at the relevant time, she should have done so. The Panel noted that the Registrant appeared to admit to this in the reflective practice sheet. For all these reasons, the Panel found Particular 4 proved.

Particulars 5(a) & 5(b) - withdrawn
Particulars 6(a) & 6(b) - withdrawn
Particulars 7(a) & 7(b) - withdrawn

Particular 8 - found proved
8. Between April 2016 and June 2020 you did not adequately complete and/or make progress with your training manual as instructed.

89. The HCPC relied on the evidence of Mrs JM. Between April 2016 and June 2020, it was alleged that the Registrant had not adequately completed and/or made progress with her training manual, as instructed. On 4 April 2016, the Registrant was issued with a training manual and on 2 August 2016, the Registrant “acknowledged training manual.” 

90. On 5 June 2020, Mrs JM received a progress report on the Registrant and a number of issues were highlighted. 

91. On 10 June 2020, Mrs JM had a Review meeting with the Registrant. Mrs JM said that the Registrant had failed to meet two out of three of her targets. One of these targets was for her to have completed her training manual. Mrs JM said that while there was no set time within which a training manual should be completed, it was unreasonable to have a training manual for 17 months and not make progress with it. The Registrant had been instructed to complete her training manual to help her increase her theoretical knowledge in 2019 but, it was alleged, she did not complete the reading. 

92. In the Management Report Mrs JM said, “Ms Griffin has been provided with more additional training and extra support than any other member of staff in the department yet she continues to make a lot of errors.” 

93. The HCPC also relied on the expert evidence of Dr RW. In relation to this allegation, she said:
“It is not unreasonable to expect this to be completed within the timeframe allowed and demonstrates either a lack of confidence due to the stressful situation the registrant was under due to being managed under the Trusts performance management policy or a conduct issue.” 

94. Dr RW was asked to comment on the following:
• Explain the importance of completing the training manual.
• Did the Registrant complete the training manual and did the Registrant ignore their manager’s instructions? 

95. Dr RW’s response was, “The registrant was given an extensive period of time to complete the training manual and therefore it could be suggested they ignored a reasonable managerial request.” 

96. Dr RW was then asked, “If so did the registrant fall below the standards expected of a registered Biomedical Scientist? If so, how far below those standards?” Dr RW responded, "From the information provided, the registrant falls below the standards expected from a registered Biomedical Scientist.” 

97. As far as the Panel could ascertain, the Registrant’s response to this allegation on page 6 of her bundle was as follows:
“I was completing this training manual, and feeding back to the relevant senior. The senior of frozen and specials, asked (verbally during a PDR), that I complete the special techniques manual first, before carrying on the the specials manual. I was on the last set of questions of the specials manual.” 

98. The period over which the training manual had not been completed was not entirely clear to the Panel. In June 2020, Mrs JM referred to the Registrant not having completed it, or made progress with it, over a period of 17 months, whereas the training manual was issued in 2016, so a period of over four years. In any event, the Panel observed that whilst no time frame had been stipulated within which a training manual should be completed, the Registrant had received a significant amount of training over an extended period of time and had still not completed her training manual. Whether that be 17 months or four years, it was a long time and Dr RW referred to the Registrant having been given an extensive period of time within which to complete her training manual. 

99. The Panel accepted the evidence of Mrs JM, as supported by Dr RW, that it was reasonable to have expected the Registrant to have completed and/or to have made adequate progress with her training manual, as instructed. Accordingly, the Panel found this Particular proved.

Particular 9(a) - found not proved
9. Between 8 July and 9 July 2020, you did not act appropriately when you found that a piece of tissue was missing from a block in that you:

a. Did not ask for help from a senior member of staff when you found a piece of tissue was missing from a block.

100. The HCPC relied on the evidence of Mrs JM. Between 8 July and 9 July 2020, it was alleged that the Registrant did not act appropriately when she found that a piece of tissue was missing from a block. The issue was noticed at ‘stain and send out’ and highlighted to a senior member of staff. A search was made for the tissue around the embedding centres, but it was not found. Mrs JM said that the normal procedure if tissue is missing is that it is noticed during the embedding process and staff stop, ask for help and everyone looks for the missing piece at the time. This, it was alleged, is what the Registrant failed to do. Fortunately, on this occasion a consultant was in fact able to make a diagnosis from the pieces of tissue that were present. 

101. The Incident Reflective Practice Sheet recorded, “A specimen querying SCC had 2 samples with it, sample A + B. Sample B was trisected, and processed as ‘3 in 1’. At embedding, there was 2 pieces instead of 3. It was embedded, and then sectioned + stained. A senior was informed later on but should have been informed as soon as one was available.” In answer to the question, “Why did this happen?” the answer given was, “The 3rd piece was not in the cassette at 7am [unclear]. The specimen should have been left at embedding station for a senior staff member to check. The 3rd piece could have been lost at any point up to and including embedding, so needed checking sooner.” 

102. At the time of this incident the Registrant had been assessed as competent. 

103. The HCPC also relied on the expert evidence of Dr RW. In relation to this allegation, she said in her oral evidence, “If the Registrant had noticed a piece of tissue was missing from the block, I would have expected her to at least have alerted someone about that.” 

104. As far as the Panel could ascertain, the Registrant’s response to this allegation on page 6 of her bundle was as follows:
“I was embedding at 7am, and found that the tissue was missing. The senior I informed, started at 7.30, and was dealing with other issues. I did inform, but should have been quicker.” 

105. In response to this, Dr RW said:
“This statement suggests that whilst the issue could have been escalated sooner, it was escalated but then possibly not acted on. Could the incident have been avoided had the senior acted sooner? If so, is this error entirely due to the Registrant’s actions?” 

106. From the evidence it was apparent there was a search for this piece of tissue but it was not found. However, the search was carried out some time after the Registrant had noticed that a piece of tissue was missing and Mrs JM made it clear in her evidence that any such search needs to be carried out immediately, or the chances of finding the missing tissue were minimal. 

107. The Panel noted, however, that the allegation was that the Registrant acted inappropriately when finding a piece of tissue was missing by not asking a senior member of staff for help and thus the Panel focused on this. The Registrant said she did inform a senior, and this was supported by the Incident Reflective Practice Sheet. Although it is not known quite when that happened, the allegation did not say, for example, ‘in a timely manner’. To prove this allegation the HCPC needed to satisfy the Panel that it was more likely than not that the Registrant had not asked a senior member of staff for help at all and this the Council had failed to do. 

108. Accordingly, the Panel could not be satisfied, on the balance of probabilities, that the Registrant had not asked for help from a senior member of staff and, therefore, found this Particular not proved.

Particular 10 - found proved
10. On or around 19 August 2020 you embedded a temporal artery incorrectly.

109. The HCPC relied on the evidence of Mrs JM. On or around 19 August 2020, it was alleged, the Registrant embedded a temporal artery incorrectly. Mrs JM said that a temporal biopsy was taken to determine if a patient had giant cell arteritis. A temporal artery is a type of tissue that needs to be embedded like a cylinder so that the round surface is flat, so when you cut into it you can see a circle. If this is not done correctly, said Mrs JM, the tissue could be destroyed and the patient would need another biopsy. The Registrant, however, embedded the tube on its side. The error by the Registrant was not picked up in the laboratory, it was the consultant who alerted the laboratory. Fortunately, in this case the tissue was able to be re-embedded and re-cut and able to be reported. 

110. In the Incident Reflective Practice Sheet in answer to the question “Why did this happen?’” the answer recorded was, “The cassette or label card was not clearly marked with embedding instructions … However the label card did refer to tube in clinical details.” 

111. At the time of this incident the Registrant was assessed as competent in embedding. 

112. The HCPC also relied on the expert evidence of Dr RW. In relation to this allegation, she was asked “In light of the evidence, did the registrant embed a temporal artery incorrectly?” Dr RW replied, “Based on the evidence provided, yes, but I couldn’t confirm it.” 

113. Dr RW went on to say:
“From the information provided, the registrant had been assessed as competent to carry out this task and therefore the evidence demonstrates a lack of competency. This could have affected patient care had it not been identified.” 

114. As far as the Panel could ascertain, the Registrant’s response on page 6 of her bundle did not refer to this allegation. 

115. The Panel was satisfied on the clear and unchallenged evidence of Mrs JM, as supported by the contemporaneous documentary evidence, that the Registrant had embedded a temporal artery incorrectly. The evidence demonstrated that this was an area where the Registrant had been trained and assessed as competent at the time. To a limited extent, Dr RW’s evidence also supported this Allegation. 

116. There was no contrary evidence and in all the circumstances, the Panel was satisfied, on the balance of probabilities, that the Registrant had embedded the temporal artery incorrectly. It therefore found this Particular proved.

Particular 11 - found proved
11. You did not inform the HCPC in a timely manner that you had been placed on restricted duties.

117. The HCPC relied on the evidence of Mrs JM and Miss LE. 

118. Mrs JM said the Registrant was advised by letter, on 14 August 2020, to stop embedding all skin specimens, including those over 2cm. The Panel was satisfied that this amounted to a restriction on the Registrant’s practice. 

119. Standard 4 of the HCPC Standards of Conduct Performance and Ethics in force at the time, stated: “You must provide (to us and any other relevant regulators) any important information about your conduct and competence. In particular, you must let us know straight away if you are: placed under a practice restriction by an employer or similar organisation because of concerns about your conduct or competence.” 

120. Miss LE, a Registration Manager at the HCPC, confirmed that the restrictions placed on the Registrant’s practice were of a kind that required her to notify the HCPC in accordance with Standard 4. However, at no time did she do so. The HCPC was first notified of these restrictions on the Registrant’s practice when she was referred to the HCPC by her employer, on 17 September 2020. 

121. However, Mrs JM in her evidence said that as the restriction preventing the Registrant from embedding skin specimens was only a small part of the Registrant’s role and was a temporary measure whilst she was re-training, she (Mrs JM) considered that with this restriction the Registrant was still working within her scope of practice and therefore she did not need to report this to the HCPC. Accordingly, Mrs JM said she did not give the Registrant any advice regarding this. 

122. This was put to Miss LE during her oral evidence and she said that they advise registrants that they must report any restriction on their practice however temporary. She confirmed that it is the responsibility of the Registrant to report the restriction on their practice, regardless of what a manager may think. Miss LE said that registrants could email, phone or provide such information online. However, at no time did the Registrant advise the HCPC that her practice had been restricted. 

123. The HCPC also relied on the expert evidence of Dr RW. In relation to this allegation, she said the Registrant was on restricted duty and so should have informed the HCPC. She was in no doubt about the responsibility of the Registrant in this regard. 

124. As far as the Panel could ascertain, the Registrant’s response on page 6 of her bundle did not refer to this allegation. 

125. The Panel was satisfied on the evidence that the Registrant’s practice was restricted in that she was prevented from carrying out any embedding, a key part of a her role. The Panel noted the view of Mrs JM, but the Standard was clear, as was the evidence of Miss LE, as supported by the expert evidence of Dr RW. 

126. Accordingly, the Panel found Particular 11 proved. 

Decision on Grounds

127. The Panel next considered whether any of the facts found proved amounted to misconduct and, if not, a lack of competence. In so doing it took into account all the relevant evidence and the submissions made by Mr Barnfield on behalf of the HCPC. The Registrant had not provided any written representations on the question of misconduct or lack of competence. 

128. The Panel accepted the advice of the Legal Assessor, who advised that misconduct involves some act or omission that falls short of what would be proper in the circumstances and that to amount to professional misconduct it must be serious. The Legal Assessor also advised that a lack of competence implies a professional standard that is unacceptably low and which has been demonstrated by reference to a fair sample of the Registrant’s work. 

129. The matters that the Panel had found proved related to five different clinical matters, affecting at least seven patients, spread over a period of approximately three years and highlighted different concerns about the Registrant’s practice in Cellular Pathology. The Panel was satisfied that this represented a fair sample of the Registrant’s work. 

130. The Panel first considered the Standards of Proficiency for Biomedical Scientists (2012 to 2023), and found the Registrant had breached the following provisions:
1a.1 be able to practise within the legal and ethical boundaries of their profession (Particular 11)
- understand what is required of them by the Health and Care Professions Council
1a.5 be able to exercise a professional duty of care (Particulars 1, 2, 3, 4 & 10)
1a.6 be able to practise as an autonomous professional, exercising their own professional judgement (Particulars 1, 2 & 10)

- be able to assess a situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem

- be able to initiate resolution of problems and be able to exercise personal initiative

- know the limits of their practice and when to seek advice or refer

- to another professional recognise that they are personally responsible for and must be able to justify their decisions

1a.8 understand the obligation to maintain fitness to practise (Particular 8)

- understand both the need to keep skills and knowledge up to date and the importance of career-long learning

2a.1 be able to gather appropriate information (Particulars 3, 4 & 10)

- be able to select suitable specimens and procedures relevant to patients’ clinical needs, including collection and preparation of specimens as and when appropriate

2a.2 be able to select and use appropriate assessment techniques (Particulars 1 & 2)

2b.4 be able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy or other actions safely and skilfully (Particulars 1 & 2)

- be able to work in conformance with standard operating procedures and conditions

131. The Panel also found there to be breaches of the following parts of the HCPC Standards of Conduct, Performance and Ethics (2012-2023):
1 You must act in the best interests of service users. (Particulars 1, 2, 3, 4 & 10)
- You must not do anything, or allow someone else to do anything, that you have good reason to believe will put the health, safety or wellbeing of a service user in danger.
4 You must provide (to us and any other relevant regulators) any important information about your conduct and competence. (Particular 11)
You must tell us (and any other relevant regulators) if you have important information about your conduct or competence, or about other registrants and health and care professionals you work with. In particular, you must let us know straight away if you are:
- suspended or placed under a practice restriction by an employer or similar organisation because of concerns about your conduct or competence.
5 You must keep your professional knowledge and skills up to date. (Particular 8) 

132. The Panel bore in mind that not every instance of falling short of what would be proper in the circumstances, and not every breach of the code, would be sufficiently serious that it could properly be regarded as misconduct and careful regard must be had to the context and circumstances of the matters found proved. 

133. The Panel had the benefit of expert evidence in this case and accordingly took into account the opinions expressed by Dr RW about whether matters fell below or far below the standards expected of a Registered BMS, when deciding whether they amounted to misconduct, a lack of competence or neither. 

134. The Panel also took into account Dr RW’s evidence that Histopathology (Cellular Pathology) was the most specialised area for a BMS to practise in and that it was entirely different from the other BMS disciplines. By way of context, Dr RW said:
“In my opinion Microbiology and Histopathology are very different disciplines and I agree with VH comment on this. As such, it should not have been a surprise that the registrant would have appeared to be starting from scratch. The registrant’s training needs should have been similar to those of any new starter to the department and new to Histopathology. Preparing a sample for culture or looping a plate in Microbiology are completely different tasks to preparing a biopsy for embedding or cutting in Histopathology. The manual aspects of the tasks required for the two disciplines cannot be compared and the high level of manual dexterity and technical skills the registrant must demonstrate in Histology (detailed within the BMS Cut-ups training manual and competency assessment paperwork) would not have be obtained and achieved during the generic training prior to HCPC registration and had they have been covered, should not have been assumed to be maintained whilst in Microbiology.
This is why it is unusual, in my opinion and experience, for Biomedical Scientists to move between these disciplines, but when this does happen the Biomedical Scientist must receive all basic training with assumption of knowledge or ability, regardless of time spent as a fully qualified and HCPC registered professional.” 

135. Dr RW said it would not be an easy sideways move for anybody to make and she said she could see why the Registrant struggled. She added, “It is important to note that despite the registrant demonstrating a lack of competency in basic tasks quite early on in their employment, the decision was made to allow them to progress to more complex areas which is an alarming decision for me.” 

136. Dr RW also said, “It should also be noted that whilst being performance managed and under investigations for errors, the registrant would have been under immense pressure. However they were offered support which from the evidence supplied, was not accepted.”

Particular 1 - lack of competence 

137. With regard to Particular 1, Dr RW said:
“From the information provided (Routine sectioning assessment/competency document signed 13/09/2016 pg 193 expert bundle), the registrant had been assessed as competent to carry out this task and therefore the evidence demonstrates a lack of competency which could have affected patient care had it not been identified and therefore falls below the standards expected from a registered Biomedical Scientist.” 

138. When asked why she thought this error had occurred, Mrs JM said, “Having watched her, Kerry did a lot of training and being assessed as competent and then ignoring what she had been told: that was a repeated pattern, possibly a lack of concentration, I don’t know why she did that.” 

139. The Panel noted that in the Incident Report Practice Sheet the reason given by the Registrant for this error was stated as, “was trying to get all the tissue onto the slide.” 

140. The Panel took into account the fact that in September 2017 when the Registrant over trimmed a case this was relatively early on in her practice in Cellular Pathology. In light of Dr RW’s evidence about the challenges in switching from Microbiology to Cellular Pathology and her view that this incident represented a lack of competence rather than being a conduct issue, the Panel decided that Particular 1 was not sufficiently serious, whether considered alone or in conjunction with other proved facts, to amount to misconduct. The Panel was, however, satisfied that it did amount to a lack of competence. 

Particular 2 - lack of competence 

141. With regard to Particular 2, Dr RW’s opinion was:
“From the information provided, the registrant had passed a further routine competency assessment as well as a complex competency assessment, before this allegation occurred, signing the registrant off as competent to carry out these tasks, therefore the evidence demonstrates a lack of competency. This could have affected patient care had it not been identified.” 

142. The Panel noted that in the Incident Report Practice Sheet the reason given by the Registrant for this error was stated as, “Possibly too long spent embedding, causing lack of concentration.” 

143. The Panel took into account that there had been a period of almost two years between the over trimming in Particular 1 and this incident of incorrect orientation. Whilst noting the potential ramifications of incorrectly orientating pieces of skin whilst embedding, the Panel accepted the expert evidence of Dr RW that this demonstrated a lack of competency, rather than being a conduct issue. 

144. Accordingly, the Panel found Particular 2 represented a lack of competence and was not sufficiently serious, whether considered alone or in conjunction with other proved facts, to amount to misconduct. 

Particular 3 - misconduct 

145. Dr RW’s expert opinion in relation to Particular 3, was as follows:
“From the information provided, the laboratory has a clear procedure for reviewing every request card and what to do should the number of biopsies received be different to the number stated on the card. Despite it being highlighted to the registrant by a colleague that there was a discrepancy, the registrant took no further action. This allegation suggests either a lack of competency to follow the SOP or a conduct issue.” 

146. In her oral evidence, Dr RW said, “If the Registrant was aware but took no action and had been signed off, that would suggest a disregard for training and the SOP which would suggest a conduct issue.” 

147. Mrs JM said the Registrant’s training covered this kind of work. She said the card clearly stated two cores were to be embedded and “she ignored that and still did not see the importance of looking for the other breast core.” Mrs JM went on to say,”It seemed to be just the way she works and she did not grasp the importance of following the SOP.” 

148. The Panel noted that in the Incident Report Practice Sheet the reason given by the Registrant for this error was stated as, “The Pot was checked for 2 cores, only one was found. What I thought was one core, wasn’t teased apart.I didn’t want to break what I thought was one core.” 

149. The Panel considered the Registrant’s inaction in this case to be in a different category to Particulars 1 and 2, because here there was clear evidence from the card that there were two cores and yet, despite the discrepancy being highlighted by a colleague, the Registrant still took no further action. This was a direct and apparently deliberate failure by the Registrant to follow the SOP. Her failure to look for and find the second core, or to have raised it with a senior BMS, could have led to a cancer diagnosis being missed. The Panel noted that by this stage the Registrant had received a great deal of training. This was, in the Panel’s view a serious failing that fell far below the standard expected of a Registered BMS and did, therefore, amount to misconduct.

Particular 4 - lack of competence 

150. With regard to Particular 4, Dr RW said:
“This could have led to an incorrect diagnosis for the patient had it not have been noted by the consultant histopathologist.”

151. Dr RW was asked “… did the registrant fall below the standards expected of a registered Biomedical Scientist? If so, how far below those standards?” She responded:
“From the information provided, the registrant failed to describe the section appropriately. I do not believe I have been provided with evidence to suggest that this task had been competency assessed and passed by the registrant and therefore cannot say whether the registrant fall below the standards expected of a registered Biomedical Scientist.” 

152. Once informed of Mrs JM’s evidence that the Registrant had been assessed as competent in BMS Cut-Off, Dr RW said, “In that case, that would demonstrate a lack of competence.” 

153. The Panel noted that in the Incident Report Practice Sheet the reason given by the Registrant for this error was stated as, “The stamp was not correctly annotated to reflect the sample.” 

154. This was a case of the Registrant mis-describing what she had seen and suggested carelessness to the Panel, rather than anything more sinister. Accordingly, the Panel accepted the expert evidence of Dr RW that this amounted to a lack of competence. Notwithstanding the potentially serious ramifications of such an error, in the Panel’s view, it was not sufficiently serious, whether considered alone or in conjunction with other proved facts, to amount to misconduct. 

Particular 8 - misconduct 

155. The Registrant began her training manual in April 2016. Four years later it had yet to be completed. Of this Dr RW opined:
“It is not unreasonable to expect this to be completed within the timeframe allowed and demonstrates either a lack of confidence due to the stressful situation the registrant was under due to being managed under the Trusts performance management policy or a conduct issue.”
"From the information provided, the registrant falls below the standards expected from a registered Biomedical Scientist.” 

156. The Panel acknowledged that the Registrant was likely to be under a degree of pressure due to the ongoing Capability process. However, she had been provided with a significant amount of training by June 2020 and had plenty of opportunity to complete her training manual. Mrs JM said in her evidence, “Ms Griffin has been provided with more additional training and extra support than any other member of staff in the department yet she continues to make a lot of errors.” 

157. Of particular note was the fact that when the Registrant attended the Review meeting in August 2020 she brought no evidence with her to show that she had done the tasks requested of her at the June 2020 Review meeting. Without the Registrant at this hearing to explain her actions, it appeared to the Panel that she had willfully disregarded a reasonable management request to complete, or at least make progress with, her training manual. In such circumstances, the Panel took the view that this was not a competence issue but rather one of conduct. To willfully disregard a management request falls far below the standard expected and represents a serious failing: sufficiently serious, in the Panel’s view, to amount to misconduct. 

Particular 10 - lack of competence 

158. Dr RW’s opinion was that this incorrect embedding demonstrated a lack of competence. She said:
“From the information provided, the registrant had been assessed as competent to carry out this task and therefore the evidence demonstrates a lack of competency. This could have affected patient care had it not been identified.”
From the information provided, the registrant did not follow the laboratory procedure and therefore the registrant falls below the standards expected from a registered Biomedical Scientist.” 

159. The Panel noted that in the Incident Report Practice Sheet the reason given by the Registrant for this error was stated as, “The cassette or lab Ia card was not clearly marked with embedding instructions [unclear]. However, the lab Ia card did refer to tube in clinical details.” 

160. This was a case of the Registrant not embedding a temporal artery correctly. Fortunately, it was possible to rectify her mistake, but had it not been then it could well have affected patient care. The Panel noted, however, that it was the first embedding issue since the incorrect orientations between July and August in 2019, a year earlier. It could not be said, therefore, that there was a pattern of incorrect embedding. The Panel saw no reason to disagree with the expert opinion that this amounted to a lack of competence rather than being a conduct issue. 

161. The Panel therefore decided that this Particular amounted to a lack of competence and was not sufficiently serious, whether considered alone or in conjunction with other proved facts, to amount to misconduct. 

Particular 11 - not misconduct or lack of competence 

162. The Registrant failed to act in accordance with Standard 4 of the HCPC Standards of Conduct, Performance and Ethics in force at the time. That is to say, she did not let the HCPC know straight away that her practice had been restricted, following the letter of 14 August 2019 telling her to stop embedding all skin specimens. 

163. The Panel had already found as a matter of fact that it was the Registrant’s responsibility to have notified the HCPC of this restriction on her practice and this she failed to do. It is clearly very important that Registrants fully comply with the Standards of Conduct, Performance and Ethics. However, the Panel acknowledged that not every breach of the Standards would be sufficiently serious to amount to misconduct and that it was important to have regard to the context and circumstances of the matters found proved. Whilst Mrs JM should have known better, the Panel could not ignore the fact that she, a very senior BMS, had not thought it was necessary to inform the HCPC of a such a restriction. Her evidence was that as the restriction preventing the Registrant from embedding skin specimens was only a small part of the Registrant’s role and was a temporary measure whilst she was re-training, she (Mrs JM) considered that with this restriction the Registrant was still working within her scope of practice and therefore she did not need to report this to the HCPC. 

164. In such circumstances the Panel did not consider it unreasonable that the Registrant may simply have been unaware of the requirement to report this restriction. There was no evidence to suggest she had withheld this information willfully or had acted with any form of malfeasance. The Registrant should be in doubt that this is an important responsibility and one she must comply with. However, the Panel did not consider a member of the public, in full knowledge of the circumstances, would find such a failure to be deplorable. The Panel concluded that this was not a sufficiently serious breach to amount to misconduct, whether considered alone or in conjunction with any other finding. 

165. This was not a clinical matter and did not, in the Panel’s view, amount to a lack of competence either. Accordingly, the Panel made no finding in relation to Particular 11.

Decision on Impairment 

166. Having found the statutory grounds of misconduct, in relation to Particulars 3 and 8, and lack of competence, in relation to Particulars 1, 2, 4 and 10 to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise was impaired as a result. In doing so it took into account the submissions made by Mr Barnfield and accepted the advice of the Legal Assessor. The Registrant had not provided any specific written representations on her current fitness to practise, but had recognised her need to be retrained in order to rectify her mistakes. 

167. The Panel also took into account the observations made by Dr RW about the challenges involved in switching from Microbiology to Cellular Pathology, referred to above. 

168. It was against that backdrop that the Panel first considered whether the errors made are remediable. Particulars 1, 2, 3, 4 and 10 all related to clinical matters and thus were, in the Panel’s view, eminently remediable. The Panel acknowledged that the Registrant had already received extensive training and support (as already referenced in this determination) and yet had still made these errors. However, that did not mean they were not remediable, particularly given the fact that a significant human factor, that the Registrant said had been impacting upon her performance at work, had now been removed. 

169. In her email dated 9 February 2021, the Registrant provided some character references for the role she took on during Covid-19 as a Vaccinator. She said, “I hope this helps reinforce that I am serious in my work and studies. I enjoy helping people, and I would very much like to rectify the errors that I have made, to maintain my registration, allowing me to work at the heart of healthcare again, as a Laboratory Assistant, and work my way up to a Band 5. Thus learning the department and role thoroughly. If there is anything that the HCPC could recommend, training wise for example, that I could complete, and allow me to stay on the register, I would willingly complete.” 

170. More recently, in her email dated 7 March 2024, the Registrant indicated her willingness to be retrained and to work under supervision in the hope that she could “rectify her mistakes.” 

171. With the right attitude, which the Panel will come on to, it was also possible that the issues around not completing her training manual could also be remedied. However, given the complex and specialist nature of Cellular Pathology, the Panel did question whether other areas of BMS practice might be more suited to the Registrant’s skillset. 

172. Having concluded the acts and omissions which led to the allegations are remediable, the Panel next considered whether the Registrant had taken any remedial action. No evidence had been provided by the Registrant to show that she has undertaken any training, work or Continuing Professional Development that directly related to the facts of the allegations in this case. The Registrant did work in a Covid Laboratory for 3 months, from October 2020 – Jan 2021, and in February 2021 she became a Covid-19 Vaccinator. In her email dated 15 October 2020 she said, “I am currently working as a lab technician, but not for the NHS, or as a Biomedical Scientist.” The Panel was aware that the Registrant was currently working, since that was the reason, she gave for not being able to attend this hearing, but she has not said whether that was still as a lab technician or something else. 

173. There was, therefore, no evidence before the Panel of any remediation by the Registrant. The Panel did take into account that these errors occurred between five and eight years ago and that there may have been human factors in the Registrant’s life that impacted upon her performance. However, in the absence of any evidence of remediation, and given the extensive training and support the Trust had provided her with, the Panel was unable to say that it was highly unlikely she would repeat them. 

174. The Panel was advised by the Legal Assessor that when considering whether fitness to practise is currently impaired, the level of insight shown by the Registrant was central to a proper determination of that issue. By reference to the Incident Reflective Practice Sheets it was apparent that the Registrant had reflected at the time of each of these clinical errors on what went wrong, what could have been the consequences and how such errors could be avoided in the future. This suggested a level of insight, but this was diluted by the fact that she continued to make errors and the absence of any up-to-date reflection. 

175. In her email dated 9 February 2021, the Registrant said, “I was concerned I was making mistakes. As a registered Biomedical Scientist, I should not have been making them.” This was repeated in her email of 7 March 2024, where she said “… I should not have been making mistakes, and I should have asked for help sooner.” 

176. The Registrant has, therefore, shown some insight into her conduct, but the Panel considered it to be somewhat limited. Beyond the Incident Reflective Practice Sheets, completed many years ago, the Registrant had provided no recent reflection on the potential impact of her errors on patient care, which Mrs JM had said could have been catastrophic. Although there was no evidence of actual harm having been caused in this case, the potential for harm was all too graphically described by Mrs JM, including: missed diagnoses; tissue being lost or being made too small a sample to adequately assess, leading to the wrong treatment being provided to a patient; delays in treatment; and the effect on the department of staff being deviated to deal with the errors made by the Registrant. 

177. Furthermore, the Registrant had not provided any reflection on the potential impact of her errors on her colleagues, who often had to step in and rescue the situation, her department, the Trust, the profession of Biomedical Scientists or the HCPC as Regulator. This meant there was a significant gap in her insight. 

178. With regard to attitude, the Panel was also concerned by what appeared to be something of a trend by the Registrant of not following instructions, not complying with training and SOPs and not taking action when samples did not correspond with their descriptions. The Panel noted, however, that this was mostly between July 2019 and August 2020, i.e. the period during which she said she had allowed herself to be distracted at work due to the pressures in her private life, referred to above and the Panel could not rule out there being a causal link. 

179. In light of the lack of remediation and the limited insight, the Panel could not be reassured that, if the Registrant were to return to practice in Cellular Pathology, she would not repeat her errors and thereby put patients at risk of harm. Accordingly, the Panel found her fitness to practise to be currently impaired on the grounds of public protection. 

180. The Panel then went on to consider whether this was also a case that required a finding of impairment on public interest grounds in order to maintain confidence in the profession and to maintain standards within the BMS profession. The public rightly expects registrants to be professionally competent. The Registrant’s failings were serious and fundamental to the role of a BMS practising in Cellular Pathology. The Panel considered that with the continuing risk that the Registrant might repeat her conduct, and thereby place patients at risk of significant harm, members of the public would have their confidence in the profession and the HCPC undermined if a finding of impairment were not made in this case. 

181. The Panel therefore found the Registrant’s current fitness to practise to be impaired on both public protection and public interest grounds. 

Decision on Sanction

182. In reaching its decision on sanction, the Panel took into account the submissions made by Mr Barnfield, together with all the relevant evidence and all matters of personal mitigation, such as were known. The Panel also referred to the guidance issued by the Council in its Sanctions Policy. The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor. 

183. The Panel considered the aggravating factors in this case to be:
• repeated errors over a period of many months (discounting the first one in 2017, when the Registrant was relatively new to the post);
• the potential risk of harm to patients;
• a trend of not following instructions, training and SOPs;
• limited insight;
• an absence of remediation.
184. The Panel considered the following mitigating factors:
• no previous adverse fitness to practise findings;
• the challenges faced by switching from Microbiology to Cellular Pathology, as highlighted by Mrs JM and Dr RW;
• early admissions to having made mistakes and that she should have sought help sooner;
• some insight, albeit limited (as highlighted above);
• appropriate reflection at the time of the incidents (as recorded in the Incident Report Practice Sheets);
• a willingness to retrain from a lower band in order to be able to return to safe practice as a BMS;
• positive testimonials, albeit obtained for a job application as a Covid-19 Vaccinator, rather than in connection with this case. 

185. In light of the risk to the public identified as a result of the lack of competence and misconduct, the Panel did not consider this was an appropriate case to take no further action or consider mediation. Neither disposal would protect the public from the risks identified by the Panel, nor would they provide the support the Registrant needs in order for her to be able to return to safe and effective practice. 

186. The Panel then considered whether to caution the Registrant. However, the Panel was of the view that such a sanction would not adequately address the ongoing concerns identified and therefore would not provide the necessary degree of protection for the public. Nor would a caution reflect the seriousness of the Registrant’s failings. 

187. The Panel thus considered whether conditions could be formulated to address the concerns identified, protect the public and provide the Registrant with the necessary support and a structured return to the workplace. The Panel took into account the fact that the Registrant had practised in Microbiology before making the sideways move to Cellular Pathology, and the challenges that provided. It was unfortunate that the Registrant had not attended this hearing and, accordingly, the Panel did not know why she had chosen to make such a move, or whether that is the area of practice that she would want to return to. However, she has indicated a keen desire to return to practice as a BMS and shown a willingness to engage, to be re-trained and to once again work her way up from a lab assistant to a Band 5 BMS. 

188. In such circumstances, the Panel did not consider the Registrant to be a lost cause, notwithstanding the extensive training she had received in Cellular Pathology. As already indicated, it may be the case that Cellular Pathology does not really align with the Registrant’s skillset and she may be far more suited to other BMS disciplines. Accordingly, the Panel was satisfied that conditions could be formulated to both remedy the concerns raised and to mitigate the risk to the public, by ensuring the Registrant is once again safe to practise, before such conditions are removed. 

189. The Panel noted that because of the time she has been out of practice (in excess of two years), the Registrant will have to complete the HCPC’s return to practice requirements. These requirements are flexible, minimum requirements that aim to protect the public by making sure a registrant has up-to-date knowledge and skills. It is a self-directed process with it being a registrant’s responsibility to ensure they meet the appropriate requirements and can practise safely and effectively within their scope of practice, in line with the HCPC’s standards and, in this case, the standards required to be adhered to by Biomedical Scientists. The amount of updating (i.e. the number of activities carried out to update one’s practice) needed by the HCPC is a minimum requirement. This means that registrants can carry out more updating if they need to. 

190. This process will require the Registrant to renew her registration, declaring that she has not practised as a BMS, and complete 30 days of updating within twelve months of renewal. The guidance states:
“Your period of updating knowledge and skills can be made up of any combination of:
– supervised practice;
– formal study; or
– private study.
You do not need to carry out updating of all three types. Our only requirement is that private study must not make up any more than half the period.
For example, if you needed to do 30 days of updating, you could do this by completing:
– 30 days of supervised practice;
– ten days of supervised practice, ten days of private study, and ten days of formal study; or
– 15 days of private study, and 15 days of formal study.
This is not a full list of possible combinations.” 

191. In the Registrant’s case this period would be 30 days, because she has been out of practice for more than two years but less than five. ‘Supervised practice’ means practising under the supervision of a registered professional. To complete a period of supervised practice, a registrant will need to identify a supervisor, who must have been on the relevant part of the HCPC Register for at least the previous three years; and not be subject to any fitness to practise proceedings or sanctions (such as a caution or conditions of practice). 

192. The Panel did consider whether these requirements alone would be sufficient to ensure public safety, whilst providing the Registrant with the necessary level of support. However, since it would be open to her to do 15 days of private study and 15 days of formal study and therefore no days of supervision, the Panel was not so satisfied. That said, the Panel was confident that with some specific conditions in place based on the return to practice provisions, the public would be protected and the Registrant would receive the support she needs. 

193. The Panel gave serious consideration to a Suspension Order given the potentially serious ramifications of her clinical errors, that occurred notwithstanding the extensive training she received. However, the Panel concluded it would be both disproportionate and unduly punitive in a case where the errors are remediable, could be addressed by a Conditions of Practice Order and related predominantly to a lack of competence, albeit with some misconduct as found in relation to Particulars 3 and 8. The Panel considered that, in all the circumstances, it would not be in the public interest to suspend a BMS who would then have no structure to try and return to practice in a safe and supervised way. The Panel also recognised that just because the Registrant appeared not to be particularly suited to Cellular Pathology, there were other BMS disciplines that she may well be more suited too. 

194. Accordingly, the Panel made an Order directing the Registrar to place conditions on the Registrant’s practice for a period of three years. The Panel acknowledged that this was the maximum period it could set for a Conditions of Practice Order. However, the Panel considered this was necessary to allow sufficient time for the Registrant to complete the return to practice requirements, in accordance with the conditions placed by this Panel on her Registration, to gain employment as a BMS and to demonstrate to a review Panel that she is safe to practise without restrictions on her registration. 

195. It is always open to the Registrant to apply for an early review of this Order, if she has fully complied with it and is able to demonstrate that she is safe to return to unrestricted practice.

ORDER: The Registrar is directed to annotate the Register to show that, for a period of three years from the date that this Order comes into effect (“the Operative Date”), you, Kerry Griffin, must comply with the following conditions of practice: 

1. When updating your knowledge and skills as part of the HCPC’s return to practice requirements you must complete at least 15 days of supervised practice. The remaining days can be made up of any combination of formal study, private study and/or supervision. 

2. Your supervised practice must be with a Practice Placement Educator registered with the HCPC. 

3. Your Practice Placement Educator must be provided with a copy of this determination so that they are aware of the issues that have previously arisen with your practice and which need particular attention. 

4. You must provide the HCPC with a report from your Practice Placement Educator when you have successfully completed all aspects of the return to practice requirements, in accordance with these conditions, confirming this to be the case. 

5. You must promptly inform the HCPC if you take up any employment as a BMS. 

6. You must only work for one employer and must not carry out any locum or agency work. 

7. You must place yourself and remain under the indirect supervision of a workplace supervisor, registered by the HCPC or other appropriate statutory regulator and supply details of your supervisor to the HCPC within 14 days of taking up employment as a BMS. You must attend upon that supervisor as required and follow their advice and recommendations, particularly with regard to the following:
- adherence to departmental SOPs and policies
- complying with training requirements
- following instructions from supervisors 

8. You must provide the HCPC with a Report from your Supervisor confirming compliance with the areas referred to in Condition 7. The first report to be provided within six months of your taking up employment as a BMS and every six months thereafter. 

9. You must work with your supervisor/line manager to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:
- adherence to departmental SOPs and policies
- complying with training requirements
- following instructions from supervisors 

10. You must allow your supervisor/line manager to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan. 

11. Within three months of commencing employment as a BMS you must forward a copy of your Personal Development Plan to the HCPC. 

12. You must meet with your supervisor/line manager on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan. 

13. On commencing any employment as a BMS you must not carry out any Cellular Pathology, unless directly supervised by an HCPC registered Specialist BMS of Band 6, or above, until deemed competent in:
- Embedding
- Sectioning
- Stain and send out
- BMS Cut-up
- Frozens 

14. Once deemed competent in the disciplines in condition 13, a report confirming this must be provided to the HCPC by the registered Specialist BMS of Band 6 or above. 

15. This Order will be reviewed shortly before its expiry and you must provide the reviewing Panel with a reflective piece, particularly addressing the potential impact of your failings on patients, colleagues, the department, the profession and the HCPC as Regulator. 

16. You must inform the HCPC within seven days of becoming aware of:
A. any patient safety incident you are involved in;
B. any investigation started against you; and
C. any disciplinary proceedings taken against you. 

17. You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any prospective employer (at the time of your application);
C. any organisation through which you are undertaking professional training. 

18. You must allow the HCPC to share, as necessary, details about your performance, compliance with, and/or progress under these conditions with:
A. any organisation or person employing or contracting with you to undertake professional work;
B. any prospective employer for professional work (at the time of your application);
C. any organisation through which you are undertaking professional training.

Interim Order 

Application 

The Panel heard submissions from Mr Barnfield on proceeding to hear an application for an Interim Order in the absence of the Registrant and also on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress. The Registrant was not present and therefore the Panel had, in accordance with the HCPTS Practice Note, first to decide whether to proceed to consider the Interim Order application in the absence of the Registrant. The Panel heard and accepted the advice of the Legal Assessor. 

Decision 

The Panel decided that it was appropriate to consider the Interim Order application in the absence of the Registrant. In reaching this conclusion, the Panel took into account the contents of the Notice of Hearing sent to the Registrant, on 12 December 2024, where it is stated, ‘Please note that if the Panel finds that it is necessary to do so, it may also impose an interim order (under Article 31 of the Health Professions Order 2001) at any stage during the hearing. An interim order suspends or restricts a registrant’s right to practise with immediate effect.’ The Panel was satisfied this meant the Registrant was on notice that this was a possible outcome at this hearing. 

The Panel remained satisfied that the Registrant had waived her right to be present at the hearing for the same reasons given for proceeding with the hearing in her absence, as detailed above. The Panel could see no reason to adjourn the hearing in order to allow the Registrant to participate on a later date because there was no indication that she would do so on any other occasion. The Panel took into account the fact that it had identified there to be a continuing risk to the public if the Registrant were allowed to practise without restriction and decided it was clearly in the public interest to consider the Interim Order application today, even if that meant it was conducted in the absence of the Registrant. 

The Panel made an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Order is in the same terms as the substantive Order and is necessary in light of the risks to the public identified above. The Panel considered 18 months was appropriate and proportionate taking into account the likely length of any appeal in the event that one is made. 

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Kerry A Griffin